R v Stojic

[2020] NSWSC 170

Supreme Court

New South Wales

Medium Neutral Citation:	R v Stojic [2020] NSWSC 170
Hearing dates:	2 March 2020
Date of orders:	04 March 2020
Decision date:	04 March 2020
Jurisdiction:	Common Law
Before:	Wright J
Decision:	(1)   The Court finds the accused fit to be tried in respect of the offences, the subject of the indictment filed in Court on 2 March 2020.  (2)   The proceedings are listed in the arraignments list before the Criminal List Judge on 6 March 2020, or such later date as the List Judge determines.
Catchwords:	CRIMINAL PROCEDURE – fitness to be tried – Mental Health Forensic Provisions Act 1990 s 8(1) fitness inquiry – whether the accused meets the Presser criteria – whether persecutory delusions and a schizoaffective disorder render the accused unfit to stand trial – accused fit to be tried
Legislation Cited:	Mental Health Forensic Provisions Act 1990
Cases Cited:	Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 R v Presser [1958] VR 45; (1958) ALR 248 R v Stojic [2018] NSWSC 1893
Category:	Procedural and other rulings
Parties:	Regina Simon Slavko Stojic (Accused)
Representation:	Counsel: C Everson (Crown) B Clark (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Boyd House & Partners (Accused)
File Number(s):	2017/231506

Judgment

Background

1. On 2 March 2020, I conducted an inquiry into the fitness to be tried of the accused, Mr Stojic. At this hearing, there was no dispute concerning the background or procedural history of the matter. There was also no significant dispute regarding the medical and other evidence as to the accused’s mental state or abilities.

The charges

2. On 29 July 2017, the accused was arrested and charged with the shooting murder of Brett Jardine at Kingsgrove on 26 July 2017 and with a number of firearms and prohibited weapons offences allegedly committed on 29 July 2017. On 2 March 2020, the Court gave the Crown leave to file in court an indictment dated 26 February 2020 relating to those charges, on the basis that the Chief Justice had given the appropriate exemption.

3. The accused is also facing aggravated assault charges relating to alleged conduct while the accused was in custody. These are being dealt with in the District Court.

Previous findings of unfitness and Mental Health Review Tribunal determinations

4. On 30 November 2018, Rothman J found the accused unfit to be tried on the murder charge, on the evidence available at that time: R v Stojic [2018] NSWSC 1893. In accordance with s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act), his Honour referred the matter to the Mental Health Review Tribunal (MHRT) and made other appropriate orders.

5. On 22 February 2019, Berman SC DCJ found the accused unfit to be tried in respect of the firearms and prohibited weapons charges.

6. On 30 May 2019, the MHRT determined, pursuant to s 16 of the MHFP Act, that the accused was unfit to be tried on the murder charge and the firearms and prohibited weapons charges, and would not become fit to be tried on those charges within 12 months of the courts’ findings of unfitness. In reaching that conclusion, however, the Tribunal noted that the accused’s treating psychiatrist at Long Bay Hospital considered that it was possible that he would become fit with assertive mental health treatment, but was not confident that this would occur.

7. On 25 July 2019, Mr Stojic was found by Ellis DCJ, sitting in the District Court in Newcastle, unfit to be tried on the aggravated assault charges.

8. The accused’s fitness for trial on the aggravated assault charges was considered by the Tribunal in September 2019 but the Tribunal adjourned its consideration of that matter to allow more time for assertive mental health treatment and to allow the treating psychiatrist to speak to the accused’s legal advisers.

9. Between August and November 2019, the accused was assessed by Dr Stephen Allnutt and Prof David Greenberg, forensic psychiatrists, who provided reports to the MHRT. In addition, Dr Anna Farrar, the accused’s treating psychiatrist expressed a view on 25 November 2019 that the accused had become fit to be tried.

10. On 28 November 2019, the MHRT conducted a hearing in relation to the accused. In addition to psychiatric evidence, the Tribunal received evidence from the accused’s solicitor, Mr Emanuel. That evidence included that a trial was likely to last in the order of three weeks, and both the solicitor and the accused’s counsel considered that the accused was now able to concentrate for lengthy periods of time and to give appropriate responses about a range of legal issues including the charges which he was facing. It was said that the accused’s legal representatives felt very comfortable that the accused had understood the advice which was given to him and was able to weigh up that advice and give views on his preferred approach.

11. On 6 December 2019, the Tribunal determined as follows:

“Pursuant to sections 16, 46 and 47 of the Mental Health (Forensic Provisions) Act 1990, the Tribunal determines that Mr Simon Slavko Stojic is presently fit to stand trial on the charges that he is facing in the Supreme Court and the District Court, relating to murder, firearms offences and assault occasioning grievous bodily harm.

The Tribunal determines that Mr Stojic suffers from a mental illness.

Pursuant to sections 46 and 47 of the Mental Health (Forensic Provisions) Act 1990, the Tribunal determines that Mr Stojic should be detained at Long Bay Hospital for care and treatment.”

12. In accordance with s 16(3) of the MHFP Act, the Tribunal informed the Court of its determination of 6 December 2019.

More recent psychiatric assessments

13. On 10 January 2020, Dr Allnutt conducted a clinical evaluation of the accused and provided a report dated 20 January 2020 to the solicitors for the accused. Dr Allnutt concluded in his report:

“At this stage I am satisfied that he is fit to stand trial, acknowledging that there is a risk of deterioration.”

14. Prof Greenberg carried out a further psychiatric assessment of the accused on 12 February 2020 at Long Bay Hospital. He provided a report dated 17 February 2020 to the solicitor at the office of the Director of Public Prosecutions. Prof Greenberg expressed his conclusion in the following terms:

“I am therefore of the opinion that in regard to Presser (1958) VR 45 at 48 and Keseavarajah vs R (1994) 123 ALR 463 criteria and on balance of probability, Mr Stojic is currently fit to stand trial and/or fit to enter a plea at this time.” (emphasis in original)

The present fitness hearing

15. The question of Mr Stojic’s present fitness has been raised prior to his arraignment before a jury on the charges in respect of the murder offence and the firearms and prohibited weapons offences. It is clear that the question has been raised in good faith.

16. In these circumstances and in accordance with ss 8(1) and 10 of the MHFP Act, it was determined that an inquiry should be conducted before the hearing of the proceedings in respect of the murder offence and the firearms and prohibited weapons offences. The inquiry concerning the accused’s fitness took place before me on 2 March 2020.

17. Both the Crown and the accused submitted that Mr Stojic was now fit to be tried. In addition to the MHRT’s reasons for its determination on 6 December 2019, the Court had before it the reports of Dr Allnutt of 20 January 2020 and Prof Greenberg of 17 February 2020.

Relevant statutory provisions and relevant principles

18. Under s 7 of the MHFP Act, the question of a person’s unfitness to be tried, which I take to include the question of a person’s fitness to be tried, may be raised at any time and may be raised on more than one occasion in respect of the same proceedings.

19. Under s 11 of the MHFP Act the determination of fitness is to be undertaken by a judge alone. Section 12(1) generally requires the accused to be represented in the inquiry, as he was by Mr Clark of counsel on this occasion.

20. Section 12(2) provides that the inquiry is not to be conducted in an adversarial manner and s 12(3) establishes that the onus of proof does not rest upon any particular party.

21. Under s 13, if, following an inquiry, an accused person is found to be fit to be tried for an offence, the proceedings against the person are recommenced or continued.

22. The assessment of whether a person is unfit or fit to be tried is to be determined by reference to the criteria identified by Smith J in R v Presser [1958] VR 45; (1958) ALR 248 (Presser) and the length of the trial: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 (Kesavarajah) at 246 (Mason CJ, Toohey and Gaudron JJ).

23. In Presser, Smith J set out the “minimum standards which [an accused] needs to equal before he can be tried without unfairness or injustice to him”:

“He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”

24. Mason CJ, Toohey and Gaudron JJ summarised the Presser criteria in Kesavarajah, at 245, as being the ability:

“(1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.”

25. Further, in Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29, Gleeson CJ referred to the following as “sound propositions” to be applied in a context analogous to the present, at [26] and [27]:

“(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial.

(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.

(c) The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.

(d) The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.”

The psychiatric evidence

26. As I have already noted, the most recent psychiatric evidence concerning the accused’s fitness to be tried is:

1. Dr Allnutt’s report of 20 January 2020; and

2. Prof Greenberg’s report of 17 February 2020.

Dr Allnutt’s report of 20 January 2020

27. Dr Allnutt conducted an evaluation of the accused on 10 January 2020. At this time, Mr Stojic was taking Clopixol, an antipsychotic medication, 20mg daily and was being seen regularly by a psychiatrist.

28. The accused presented as cooperative and did not manifest behaviours consistent with side effects to psychiatric medication or neurological illness. There was no evidence of significant frustration and he spoke in a clear coherent manner. His affect was somewhat flat, and he did endorse some depressive symptoms. There was no evidence of mania, hypomania, suicidal or aggressive ideation, plan or intent or psychosis. He appeared to have reasonable cognitive capacity and his capacity for insight and judgement seem to be adequate.

29. Dr Allnutt was of the opinion that Mr Stojic likely suffers a chronic delusional disorder, with a differential diagnosis of a schizoaffective disorder or a paranoid schizophrenia. It was also Dr Allnutt’s view that since he last saw him on 22 August 2019 there had been a significant improvement in his mental state. It was noted that he continued to take his antipsychotic medication and that this was likely to have contributed to the improvement noted. The doctor’s impression was that the accused continues to manifest ongoing residual symptoms of a complex systematised paranoid delusional system, but there has been a reduction in their intensity and his levels of preoccupation, and probably a rescinding of earlier delusional beliefs.

30. In particular, Dr Allnutt assessed that:

1. In relation to his capacity to understand what he is charged with, the accused relevantly understood that he was charged with murder.

2. In relation to his capacity to plead guilty or not guilty, the accused had that capacity as he understood the meanings of the terms guilty or not guilty, and the results of those findings. He was also able to provide a rational account of his reasoning for rejecting a plea of not guilty by reason of mental illness, despite accepting that he was probably suffering a mental illness at the time of the alleged offence and that the defence might be available to him. He could enunciate his understanding of the potential consequences for him, balancing the “pros and cons” in relation to a not guilty by reason of mental illness outcome versus the potential outcome of a guilty plea.

3. In relation to his capacity to exercise his right of challenge, the accused understood the nature of a jury and the concept of his right of challenge.

4. In relation to his capacity to understand the nature of the proceedings, the accused understood the purpose of the proceedings was an enquiry as to whether he did the crime or not and he understood the roles of the judge, jury, his lawyer, the prosecution, the charges and the consequences of the various pleas.

5. In relation to his capacity to follow the course of the proceedings, Dr Allnutt observed that there had been a further reduction in his emotional investment in his delusional belief systems, to the extent that, while there were residual symptoms probably relating to ongoing odd ideas and possibly mild delusional beliefs, they were not to the extent that they would interfere with his ability to follow proceedings and instruct counsel. In addition, the accused would be able to focus on witnesses even though he continues to have residual symptoms, and therefore the Court should remain aware that he is still vulnerable to fluctuations in the severity of his illness.

31. It appeared that, in relation to whether the accused had the ability to understand the substantial effect of any evidence that may be given in support of the prosecution and to make a defence or answer to the charge, Dr Allnutt was satisfied that he had this ability, given the matters he referred to earlier in the report.

32. In summary, Dr Allnutt was satisfied that at this stage, the accused is fit to stand trial, even though there is a risk of deterioration.

Prof Greenberg’s report of 17 February 2020

33. Prof Greenberg assessed Mr Stojic on 12 February 2020. In his report of 17 February 2020, he reached essentially the same conclusions as Dr Allnutt, although the accused was apparently more guarded in what he would disclose to Prof Greenberg concerning his defence.

34. Prof Greenberg diagnosed chronic delusional disorder with residual delusions (differential diagnosis: late-onset schizophrenic disorder). He also queried whether there was alcohol and cannabis use disorder.

35. In relation to the Presser criteria, Prof Greenberg was of the opinion that the accused:

1. understood the nature of the charges he was currently facing;

2. understood the various pleas to the charge and was able to explain the significance and consequences of each in some detail;

3. understood the nature of the proceedings, namely that it was an enquiry into the veracity of the allegations against him, with the purpose of the trial being to decide whether he was guilty or not. He had a fair understanding of what evidence was and understood how the evidence would be tested in court;

4. appeared to understand the course of the proceedings and the functions of the officers in court, including the role of his solicitor and barrister being to defend him and he knew their names. He understood the role of the prosecutor and understood that the judge made the decision based on the evidence. He claimed that there would be 12 jury members and they would be selected “at random from the public” and he understood their role. He also understood that he was the accused, as well as the role of a witness;

5. had an understanding of how to exercise his right to challenge the jurors; and

6. could, at this time, appreciate the substantial effect of evidence given in court and presently claimed that he was not having difficulty with concentration or poor attention span.

36. Prof Greenberg went on to say:

“Although, during my view he continues to have residual delusional beliefs, these beliefs appear not to directly impact his ability to weigh up his options, appreciate the substantial effect of any evidence or instruct his legal counsel at this time. However, with the stress of a pending trial and during the course of such a trial with his complex court matters, it is possible he may deteriorate in his mental state and the issue of his fitness to stand trial again become an issue for the court. At this time, I’m of the view, provided he remain under the care of his treating psychiatrist … and fully comply with all psychiatric treatment recommendations, the likelihood of this deterioration would likely be minimised.”

37. Prof Greenberg was of the opinion that the accused could instruct his legal counsel at this time and give evidence, if required to do so. He had an understanding of the nature of an oath and the consequences of perjury.

38. As noted above, Prof Greenberg was of the view that the accused was currently “fit to stand trial and/or fit to enter a plea at this time”.

Other matters

39. In considering whether the accused is fit to be tried, I have also taken into account the views of the MHRT, as expressed in their reasons for decision dated 6 December 2019. The Tribunal noted the persuasive evidence of Dr Farrar, his treating psychiatrist, and Mr Emanuel, his solicitor, that there had been a significant improvement in the accused’s mental state since the previous review by the Tribunal. In addition it was recorded that his counsel advised that they now had been able to have lengthy and complex conferences with him and he appeared to have been able to understand and absorb their advice. This was in contrast to their experience over the previous two years.

40. The MHRT also said:

“There has never been any real question about Mr Stojic’s ability to understand the charges or the court process. The concern as to his fitness has been about the impact of his delusional beliefs on his capacity to concentrate during a trial and to give instructions to his lawyers, without being distracted by the intensity of his delusional thoughts. The evidence of his treating team and legal team is that his delusional beliefs has now receded to the point where he is able to concentrate and discuss matters with his lawyers.

The Tribunal considers that as a result of the reduced intensity of Mr Stojic’s delusional beliefs he is fit to stand trial. If he is likely to be assisted by breaks during the trial process, he is confident that he will be able to tell his legal team. His capacity to concentrate may still improve in the time before a trial is listed.”

41. Finally, I note that Mr Clark, the accused’s counsel, did not suggest that any of the comments made by Dr Allnutt, Prof Greenberg or the MHRT concerning the accused’s ability to confer with, and give instructions to, his counsel and other legal advisors were incorrect. Nor did he put any submissions contrary to those of the Crown in support of the conclusion that the accused should be found to be fit to be tried.

Conclusion and orders

42. In all the circumstances and applying the principles set out above, I find on the balance of probabilities that the accused is fit to be tried for the offences the subject of the charges in the indictment filed on 2 March 2020.

43. In these circumstances, the proceedings in respect of those offences are to continue. To this end, the matter should be listed in the arraignments list before the Criminal List Judge on 6 March 2020, or such later date as the List Judge determines.

44. Accordingly the orders of the Court are:

1. The Court finds the accused fit to be tried in respect of the offences, the subject of the indictment filed on 2 March 2020.

2. The proceedings are listed in the arraignments list before the Criminal List Judge on 6 March 2020, or such later date as the List Judge determines.

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Decision last updated: 04 March 2020